AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
8
Supreme Court 5 October 2000

R v Faulkner

[2000] NSWSC 944

HomicideDrugsPublic order & justice offences

Citation: R v Faulkner [2000] NSWSC 944 revised 8/12/2000
Court: Supreme Court of New South Wales, Criminal Division
Date: 5 October 2000
Judge(s): Wood CJ at CL

Background

The prisoner pleaded guilty to two counts of being an accessory after the fact to murder. The underlying murders were allegedly committed by a third party (Naismith) at Charlestown on 16 August 1999, with the two victims being associates of Naismith in the drug trade. The prisoner was present at Naismith's home when both men were killed, though the Crown did not allege he knew the killings were planned or that he participated in them.

Following the murders, the prisoner assisted Naismith in removing and disposing of the victims' vehicles and helping move and conceal the bodies, acting at least in part under what he perceived as a veiled threat from Naismith. He was sentenced before Naismith's own murder trial because he had agreed to give evidence for the Crown, consistent with induced statements he made to police in September 1999.

Four additional offences were brought before the court on a Form 1 to be taken into account on sentencing, involving drug supply, deemed drug supply, goods in custody, and receiving stolen property.

  • What weight should be given to the prisoner's cooperation with police and his undertaking to give evidence against the alleged murderer?
  • How should the element of coercion or perceived threat affect the assessment of the prisoner's moral culpability?
  • Whether the prisoner's ongoing need to serve sentences on strict protection constituted a "special circumstance" justifying a longer parole period under the Crimes (Sentencing Procedure) Act 1999.
  • How to structure concurrent sentences across two counts, and how to treat the Form 1 offences.

Decision

The court found that while the prisoner's role was serious, several factors significantly reduced his culpability. He had no foreknowledge of the murders, was present only by prior arrangement relating to drug packaging, and acted under a degree of coercion after the killings occurred. His cooperation with police, including induced statements that were substantially corroborated by physical evidence and other witnesses, was described as progressing from a qualified start to what the Crown accepted as complete and truthful disclosure.

The court gave substantial weight to the prisoner's cooperation and his undertaking to give evidence in the forthcoming murder trial. It acknowledged the risks and hardships this exposed him to, including the need to serve his sentence on strict protection, with limited access to standard rehabilitation programmes. The court also noted the likely need for the prisoner and his family to relocate upon release.

Wood CJ at CL identified the requirement to serve on strict protection as a special circumstance within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a longer parole period than the statute would otherwise contemplate. This was to allow for proper supervision and assistance during rehabilitation. The court nonetheless emphasised that sentences must remain proportionate to the nature and circumstances of the offences, per s 23(3) of the Act and relevant appellate authority.

The sentences on the two counts were ordered to run concurrently, on the basis that both offences formed part of a single continuing episode. The Form 1 offences were taken into account in relation to the first count only.

Orders Made

  • Count 1: Sentenced to imprisonment for four years and four months, commencing 25 August 1999, with a specified non-parole period of two years and eight months from the same date.
  • Count 2: Sentenced to a concurrent fixed term of two years and eight months.
  • Earliest eligible date for release on parole: 24 April 2002.

Key Takeaways

  • An accessory after the fact to murder may attract significantly reduced culpability where the offender had no prior knowledge of the killings and acted under perceived coercion, even where the assistance provided was substantial.
  • Genuine and corroborated cooperation with police, including an undertaking to give evidence against a co-accused, carries considerable weight in mitigation at sentencing.
  • Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, the need to serve a sentence on strict protection can constitute a special circumstance justifying a longer parole period, given the restricted access to rehabilitation programmes and the risks to the offender upon release.
  • Sentences for offences forming part of a single continuing episode may properly be ordered to run concurrently rather than cumulatively.
  • Notwithstanding strong mitigating factors, the Supreme Court confirmed that sentences must remain reasonably proportionate to the nature and circumstances of the offences, consistent with s 23(3) of the Act and the Court of Criminal Appeal's approach in cases such as Huang (1995) 78 ACrimR 111.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(3), 24, 32, 44(2)

Cases:
- Huang (1995) 78 ACrimR 111
- Morrissey, NSWCCA, 15 July 1994 (unreported)
- Kenworthy, NSWCCA, 3 August 1995 (unreported)